This week the National Association of Criminal Defense Lawyers (NACDL) issued a report on the “trial penalty.” According to the report defendants “are being coerced to plead guilty” because the penalty for exercising their constitutional right to be proven guilty beyond a reasonable doubt at trial is “simply too high to risk.”

According to the NACDL’s website, the report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable recommendations to address this crisis.

In the report, NACDL examines sentencing and other data underlying the fact that, after a 50-year decline, fewer than 3 percent of federal criminal cases result in a trial.

Former Eastern District of New York Judge John Gleeson authored a foreword to the report suggesting, “Putting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.”

Judge Gleeson is the same judge who told the New York Times in 2014,“Prosecutors routinely threaten ultraharsh, enhanced mandatory sentences that no one — not even the prosecutors themselves — thinks are appropriate.” Judge Gleeson said the way prosecutors use trial penalty, “coerces guilty pleas and produces sentences so excessively severe they take your breath away.”

The report contends that trial by jury has been replaced by a “system of pleas” which diminishes, to the point of obscurity, the role that the framers envisioned for jury trials as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system.

Guilty pleas have replaced trials for a very simple reason: Individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they go to trial and lose.

Faced with this choice, individuals almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt. The report contends that defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and the government respect the boundaries of the law.

Beyond a reasonable doubt — the bedrock of the criminal justice system — plays no role in an alarming number of cases. What this means is that an insignificant number of offenders heading off to state or federal prison were proven guilty of anything. Sure, those defendants acknowledged their guilt by choosing to enter a guilty plea; but shouldn’t the most revered legal system in the world provide something more in terms of protection for those accused of a crime?

On the other hand, can the criminal justice system function without plea bargains? The plea bargain, however unpopular or unseemly, is a much needed tool in the administration of justice. If the plea bargain were to disappear the criminal courts would grind to a halt. Several years ago, U.S. Supreme Court Justice Anthony Kennedy said plea bargaining determines "who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system.”

Why shouldn’t there be a trial penalty? What reasonably prudent defendant, represented by a reasonably competent attorney, would plead guilty if she knew a conviction at trial would bring the same penalty as pleading guilty. A defendant would have nothing to lose by going to trial. The number of trials would increase as would the direct appeals and collateral challenges. A system that is already overburdened would be pushed to the limit.

The question is how to balance the fundamental principles of the U.S. Constitution with the mechanics of the criminal justice system? The NACDL report may well be a first step in finding that balance.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

Never miss a story

Choose the plan that's right for you.
Digital access or digital and print delivery.